APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Amy Jones, Judge. Cause No. 49F08-1203-FD-19889.
ATTORNEY FOR APPELLANT: JOEL L. SCHUMM, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; GEORGE P. SHERMAN, Deputy Attorney General, Indianapolis, Indiana.
MAY, JUDGE. BAILEY, J., and BROWN, J., concur.
Antwonna Smith was convicted after a jury trial of Class D felony theft and Class D felony resisting law enforcement. Resisting law enforcement is a Class A misdemeanor, but when Smith committed the offense it could be enhanced to a Class D felony if the person " inflicts bodily injury on or otherwise causes bodily injury to another person." Ind. Code § 35-44.1-3-1. Smith's conviction of resisting law enforcement was enhanced to a Class D felony on the ground she inflicted bodily injury after a police officer scraped his knuckle and fingertip while forcing Smith to the ground. Smith argues on appeal the enhancement was error because she did not " inflict" the injury on the officer and the " cause"  of the injury was the officer's
action, not hers. We agree and therefore reverse and remand so the trial court may enter a conviction of resisting law enforcement as a Class A misdemeanor.
FACTS AND PROCEDURAL HISTORY
Smith left a Meijer store without paying for some items. A Meijer loss prevention employee followed Smith to the parking lot and confronted her about shoplifting. She denied taking the items and continued walking toward her car. Another loss prevention employee called Officer Rick Jones, a police officer and former Meijer loss prevention employee who was nearby. The employee told Officer Jones about the shoplifting and provided a description. Smith left in her car, and two Meijer employees followed her so they could identify her when Officer Jones stopped her.
Officer Jones found Smith's car and pulled her over. When the Meijer employees arrived, Officer Jones had them look into Smith's car to identify the items she had taken from the store. They identified Smith and the items, and Officer Jones asked Smith to step out of the car so he could arrest her. When Smith was outside the car, Officer Jones asked her to put her hands behind her back, but she did not comply. The officer tried to handcuff her, but she would not put her hands behind her. Smith moved toward the driver's door of her car, and the officer " forcefully put all [his] body weight onto her body . . . to prevent her from getting into the vehicle." (Tr. at 77.)
There was a struggle, and one of the Meijer employees grabbed Smith's arm. Officer Jones told Smith: " You don't want me to take you to the ground. It's wet. Just put your hands behind your back and we won't end up on the ground. You won't be taken to the ground." ( Id. at 78.) Smith still would not submit to being handcuffed, so the officer " gave her a knee strike," ( id.), which he described as " a pain compliance technique to whereas if I can apply some pain to . . . a nerve that runs to the muscle of your leg. . . . [I]t's a temporary pain . . . it's designed to take your mind off what you're currently doing." ( Id. at 78-79.) That did not have the desired effect, so the officer " pulled her arm as [sic] about as possibly as hard as I could [and] we ended up on the ground." ( Id. at 80.)
Smith told Officer Jones he had broken her leg, and she testified she was hospitalized four days for her injuries. After they fell, Officer Jones discovered " lacerations to [sic] scraping from being on the pavement . . . in [sic] one of my knuckles and my fingertip area." ( Id. at 81.) The injury was " painful," ( id. at 83), but was " nothing that prohibited me from continuing to write with a ...